Court File and Parties
COURT FILE NO.: FC-17-636-1
DATE: 20191210
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TAMARA MARIE ALEXANDRA MCALPINE, Applicant
AND
MICHAEL JOSEPH MCALPINE, Respondent
BEFORE: Madam Justice Heather J. Williams
COUNSEL: No Counsel for the Applicant A. Teshebaeva, for the Respondent
HEARD: Costs submissions in writing
Costs ENDORSEMENT
[1] The father had brought a motion for increased and unsupervised access and to amend his pleading.
[2] I granted the father unsupervised access, set an access schedule and allowed the pleading amendment.
[3] The father was represented by counsel on the motion; the mother was ably self-represented.
[4] There were no offers to settle.
The Father’s Position
[5] The father argues that he was successful on the motion, in that his primary claim was for unsupervised access, which was granted.
[6] The father requests costs of $1,000.00, inclusive of disbursements and HST, about 60 per cent of his full indemnity costs.
The Mother’s Position
[7] The mother argues that the father was not entirely successful on the motion in that the court recognized that the access schedule proposed by the father was not realistic, given the location of the children’s school.
[8] The mother argues that she did not understand that the father’s motion to amend this pleading was strictly procedural, that it did not add to the cost of the father’s motion and that it should not weigh in favour of the father’s success on the motion.
[9] The mother argues that, given the father’s history, which includes a bank robbery, a claim of a mental breakdown and significant cannabis use, it was not unreasonable for her to have opposed the father’s motion.
[10] She argues that the father’s failure to make an offer to settle should weigh against his claim for costs. I note, however, that she did not make an offer either.
[11] The mother argues that in the circumstances, and particularly given the divided success on the motion, each party should bear their own costs.
Analysis
[12] Modern costs rules are designed to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2(2) of the Family Law Rules. (Mattina v. Mattina, 2018 ONCA 867.)
[13] Rule 24(1) of the Family Law Rules creates a presumption of costs in favour of the successful party. Consideration of success is the starting point in determining costs (Sims-Howarth v. Bilcliffe 2000 ONSC 22584.)
[14] In exercising its discretion to order costs, the court is required to consider the factors set out in subrule 24(12) which are the following:
(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:
(i) each party’s behaviour,
(ii) the time spent by each party,
(iii) any written offers to settle including offers that do not meet the requirements of rule 18,
(iv) any legal fees, including the number of lawyers and their rates,
(v) any expert witness fees, including the number of experts and their rates,
(vi) any other expenses properly paid or payable; and
(b) any other relevant matter.
[15] In this case, while success was divided, I consider the father to have been more successful, because I granted his request for unsupervised access. The mother was adamant that supervision was non-negotiable, even though the father lives with his mother; she did not accept that the father’s mother might be able to provide adequate supervision.
[16] Although the mother had refused to compromise on the supervision issue and was ultimately unsuccessful, she had her reasons and, other than in respect of the father’s mother, I did not consider conduct to have been unreasonable; the mother’s distrust of the father is understandable, given their history.
[17] The fees charged by the father’s counsel were extremely reasonable.
[18] In all of the circumstances, I consider $500.00, inclusive of disbursements and HST to represent a reasonable and proportionate amount for the mother to pay to the father.
[19] The mother shall pay the father $500.00 in costs.
Madam Justice H.J. Williams
Date: December 10, 2019
COURT FILE NO.: FC-17-636-1
DATE: 20191210
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: TAMARA MARIE ALEXANDRA MCALPINE, Applicant
AND
MICHAEL JOSEPH MCALPINE, Respondent
BEFORE: Madam Justice H.J. Williams
COUNSEL: No Counsel for the Applicant A. Teshebaeva, Counsel for the Respondent
Costs ENDORSEMENT
Madam Justice H.J. Williams
Released: December 10, 2019